Hayes Express

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of all employees in the following unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of our warehouse in Lancaster, Pennsylvania, excluding office clerical personnel and supervisors as defined in the Act. WE WILL offer to Richard Dommel and, upon application, to John Gebhard, David Dinkel, Robert Kloeffer, and Carl Kudia immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make Dommel whole for any loss of pay he may have suffered as a result of the discrimination against him and will make Gebhard, Dinkel, Kloeffer, and Kudia whole for any loss of pay they have suffered or may suffer as a result of our refusal to reinstate them upon such application. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by a lawful agreement requiring membership in a labor organiza- tion as a condition of employment. ALLEGHENY PEPSI-COLA BOTTLING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Hayes Express and Alfonso A. Guarino and Thomas Monte- leone and Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde- pendent, and Local 102, International Ladies Garment Workers. Union of America, AFL-CIO, Parties to the Contracts Local 102, International Ladies Garment Workers Union of America, AFL-CIO and Thomas Monteleone and Hayes Ex- press, Party to the Contract . Cases Nos. 393-CA-467, 22-CA- 606, 22-CA-511, and 22-CB-265.1 November 17, 1961 DECISION AND ORDER On February 21, 1961, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- 1 Case No 22-CB-264, In which Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, was named as Respond- ent, was originally consolidated with the instant cases However, before the instant hear- ing opened, Local 560 entered into a settlement agreement, and the Trial Examiner severed Case No. 22-CB-264 upon motion of the General Counsel. 134 NLRB No. 42. HAYES EXPRESS 409 from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter, the Respondent Union, hereinafter called Local 102, filed exceptions to the Intermediate Report, together with a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. The Trial Examiner's Findings The Trial Examiner found that the Company (1) violated Section 8 (a) (3) and (1) of the Act by laying off and constructively discharg- ing Alfonso Guarino, and by constructively discharging Monteleone and Joseph Toronto; (2) violated Section 8(a) (3) and (1) of the Act by paying higher wages for the same work to members of Local 560 than to other employees; (3) violated Section 8(a) (2) of the Act by exerting various pressures upon its employees to join Local 102; and (4) violated Section 8(a) (1), (2), and (3) of the Act by maintaining in effect an unlawful union-security agreement with Local 102. As to Local 102, the Trial Examiner found that, by maintaining the fore- going agreement in- effect, it violated Section 8(b) (1) (A) and (2) of the Act. As the Company has filed no exceptions, we adopt the Trial Examiner's findings and recommendations as to it, but only insofar as they are not inconsistent with the disposition hereinafter made of Local 102's exceptions. The Contract Issue Local 102 excepts to the Trial Examiner's finding that its contract with the Company contained an unlawful union-security clause. We find merit in this exception. Since about 1932 Local 102 has bargained with the Company through an employer association,2 and during that period negotiated a series of associationwide contracts, covering, inter alia, the Com- pany's employees. About 1950, the Company began to negotiate with Local 560 and has executed with it a series of contracts covering its employees in a separate, single-employer unit. The last such contract was signed on September 1, 1958, for a term of 2 years. This contract contained a union-shop clause, valid on its face, and purported to apply to all the Company's drivers and helpers. However, on July 2, Garment Truckmen Association of New Jersey , hereinafter called the Association. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1959, the Association, on behalf of the Company, negotiated a contract with Local 102, effective to February 28, 1961, which also contained a union-shop clause, valid on its face, and purported to cover all the Company's drivers and helpers. On August 3, 1959, the initial charge in this case was served upon the Company. In March 1960 charges were served upon Local 560 3 and Local 102, alleging the illegality of both the foregoing contracts. The Trial Examiner found that the fact that both contracts cov- ered the same unit rendered the unit 'inappropriate for collective- bargaining purposes, and that since, under the proviso to Section 8(a) (3) of the Act, a union-security contract is lawful only if it covers employees in an appropriate unit, Local 102's contract was unlawful. He accordingly found that, by maintaining their contract in effect, Local 102 and the Company violated Section 8(b) (1) (A) and (2) and 8(a) (1), (2), and (3) of the Act, respectively. Citing the Bryan Manufacturing case,4 Local 102 contends that the Board is barred by Section 10 (b) of the Act from invalidating its con- tract, as that contract is valid on its face. However, while this con- tract was executed more than 6 months before the service of the charge upon Local 102, the initial charge against the Company was served upon it within the 6-month period of limitations fixed by Section 10 (b) .1 Accordingly, although we agree with Local 102 that we are barred by the Bryan case from finding any violation by it with respect to the 1959 contract, we are not similarly barred with respect to the Company. Turning to the validity of the Company's action, we do not agree with the Trial Examiner that the mere coexistence of two conflicting contracts covering the same unit rendered the unit inap- propriate. While this circumstance may raise some question as to which Union is the majority representative, there is no affirmative proof here that Local 102 did not in July 1959 represent a majority of the employees in the multiemployer unit covered by its 1959 con- tract.' Moreover, in view of the long history of bargaining here on an associationwide basis, which antedated by about a score of years the separate bargaining with Local 560, we find that the associationwide unit is appropriate. We find therefore that Local 102's contract was lawful, and we will modify the Trial Examiner's Recommended Order accordingly. 3 Local 5G0 subsequently entered into a settlement agreement 4Local Lodge No 1424, International Association of Machinists , AFL-CIO; et al- (Bryan Manufacturing Co ) v N.L R B., 362 U S 411 5 Although this charge specified only the discriminatory discharge of an employee, it was sufficient to support the allegations of the instant complaint that Local 102's union- security clause was illegal See Triboio Carting Corporation, 117 NLRB 775. O The burden of proof on this issue was necessarily on the General Counsel The only evidence in the record is that members of Local 102 did not constitute a majority of the Company's employees in October 1959 However, this is insufficient to disprove Local 102's majority status in the associationwide unit or Its majority status at the time of the execution of the 1959 contract. HAYES EXPRESS 411 The Wage Issue The Trial Examiner found that the Company violated Section 8(a) (3) and (1) of the Act by paying higher wage rates to its em- ployees who were members of Local 560 than to those who were either members of Local 102 or of neither union. Thus the rate range for members of Local 560 was, as prescribed by Local 560's contract, from $89.72 per week for helpers to $107 per week for trailer drivers, while the corresponding range for members of Local 102 was from $75 per week to $83.50. The range for nonunion employees was from $78.90 to $90. We agree that the maintenance of such a discriminatory dif- ferential in rates for employees in the same bargaining unit perform- ing the same work was unlawful,' and we shall order the Company to cease and desist from such conduct in the future.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hayes Express, Lodi, New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Local 560, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent, or any other labor organization of its employees, by discrimininating with regard to wages or other terms or conditions of employment of any of its employees because of their nonmembership in such organization. (b) Threatening employees with loss of work, or discharging them, for attempting to join Local 560. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' Gaynor News Company, Inc v N L B B , 347 U S. 17 8 We do not consider it appropriate in the unusual circumstances of this case to adopt the Trial Examiner's recommendation that the Company be required to reimburse em- ployees for past wage differentials 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer Joseph Toronto and Thomas Monteleone immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights or privileges. (b) Make whole Alfonso Guarino, from July 29,1959, until May 26, 1960, and Thomas Monteleone and Joseph Toronto from October 2, 1969, until the date of an offer of reinstatement, for any loss of pay suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which he would have earned as wages, less his net earnings during such period, and less any settle- ment payments in the case of Alfonso Guarino, such loss of pay to be computed in the manner specified in the section of the Intermediate .Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to an analysis of the amounts of backpay due. (d) Post at its office and place of business at Lodi, New Jersey, copies of the notice attached hereto marked "Appendix A." 9 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by an official rep- resentative of Respondent Hayes, be posted immediately upon their receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent Hayes to insure that these notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. It is hereby further ordered that the complaint be dismissed inso- far as it alleges any violations by Local 102, and insofar as it alleges any violations by Respondent Hayes not found herein. MEMBER RODGERS concurring : I concur in the result. MEMBERS LEEDOM and FANNING took no part in the consideration of the above Decision and Order. 9 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : HAYES EXPRESS 413 WE WILL NOT encourage membership in Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, by discriminating against non- members of that organization with respect to wages or other terms of employment. WE WILL NOT threaten to discharge, or discharge, any employee for attempting to join the aforesaid labor organization. WE WILL NOT in any other manner interfere with our employees' rights to join or not join any labor organization, except to the extend this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. WE WILL offer to Thomas Monteleone and Joseph Toronto im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and we Will make them and Alfonso Guarino (he does not desire reinstatement) whole for any loss of earnings they may have suffered as a result of the discrimination against them. All our employees are free to become, to remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of, the Act, as amended. HAYES ExPREss, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding began with the filing of five charges by two individuals, Alfonso A. Guarino, herein called Gaurino, and Thomas Monteleone , herein called Monteleone. Guarino filed the first charge against Hayes Express, herein called Hayes, in Case No. 22-CA-467 on August 3, 1959, amended August 24, and September 21, 1959. Monteleone filed the second charge against Hayes in Case No. 22-CA-511 on October 13, 1959 , amended on March 11 , 1960. Also on March 11, 1960, Monte- leone filed the charge in Case No. 22-CB-264 against Local 560, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Independent, herein called Local 560 ; and on the same day filed a charge in Case No. 22-CB-265 against Local 102, International Ladies Garment Workers of America, AFL-CIO, herein called Local 102 . Guarino filed the last charge in Case No. 22-CA-606 against Hayes on March 14, 1960. Pursuant to an order con- solidating the cases, the proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Newark , New Jersey, on May 24, 25, 26, and 27, and June 3, and 8 , 1960, on complaint of the General Counsel and answer of Hayes, Local 560, and Local 102.1 'Although the hearing was scheduled to commence on May 23 , that day was devoted to settlement discussions between the General Counsel and the various parties. As a result of these discussions , Local 560 and the General Counsel, with Hayes participating 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The main issues involved are whether two persons were discharged because of attempts to join Local 560; whether they were subsequently refused work because of filing charges; whether Hayes discriminated against its employees because of their membership or nonmembership in a union; whether Hayes assisted Local 102 and blocked attempts to join Local 560; and whether the exclusive collective-bargaining agreements between Hayes and Local 102 and Hayes and Local 560, containing union-security clauses, cover the same unit of employees and hence the Local 102 contract is illegal. Sections of the Act alleged to be violated are 8(a) (1), (2), (3), and (4) and8(b)(1)(A) and (2). Respondents Hayes and Local 102 deny all material allegations in the complaint. All parties were represented at the hearing and accorded full participation. Briefs were filed by the General Counsel, Hayes, and Local 102 and have been carefully considered. Upon these briefs, and upon ,the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT EMPLOYER HAYES The parties stipulated that Hayes, a New Jersey corporation, is engaged at its principal office and place of business in Lodi, New Jersey, in providing and perform- ing trucking services. In the course and conduct of its operations in the calendar year 1959 it had gross revenue in excess of $100,000 from its interstate operations between and among the States of New Jersey, New York, and other States of the United States. I find that Hayes is now and has been at all times material herein en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I find, as stipulated to by the parties, that Local 560 and Local 102 are labor organizations within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background John Garrantano, who had been known as Johnny Hayes for as long as he could remember, had been in the trucking business since 1922. This business started out originally as a partnership and eventually in July 1959 the present corporation known as Hayes Express was formed. He is the president. In general, his business was to truck materials, which had been cut into ladies' garments by the manufacturer in New York City, to New Jersey where garments were finished and returned by truck to the manufacturer in New York City. In addition he trucked miscellaneous freight and general commodities between New York and New Jersey and in each State. As of October 1959, Hayes employed 20 drivers and 4 helpers. Of these 24 employees, 9 were members of Local 560, 7 were members of Local 102, and 7 were not mem- bers of any union and the status of Jackson, Junior, is unknown and he left employ- ment shortly after Ocober 1959. At the date of the hearing, the above employees had been reduced to 18. Of these, eight were members of Local 560, seven were mem- bers of Local 102, and three were nonunion members.2 There is credible testimony by witnesses for the General Counsel and an admission by John Garrantano that all of the drivers handled all the types of freight moved by Hayes. Accordingly the question was asked of John Garrantano why there were two unions in the plant. He replied as follows: The reason I have two unions in that barn is because a few years ago we started to work with the United Piece Dye Works, and we couldn't get in to pick up any piece goods from that plant because they had a group of-the entire staff of theirs was 560 then. And the 560 men started to squawk about where does Hayes come in to pick up goods with nonunion men. They didn't recognize 102 men in their plant. So I had to get some of the men on the 560 staff in order to go in and get those piece goods. I started driving myself with 102, and I had a helper. And we were told, making deliveries, they said you have to have a union man with you. And I went ahead and got a union man from the 102. And we started out that way. as a party to the contract, entered into a full settlement agreement in Case No. 22-CB-2G4 and upon motion by the General Counsel this case was severed from the proceedings 2 See chart attached as Appendix B hereto HAYES EXPRESS 415 As the witnesses for the Respondent insisted that approximately 80 percent of their hauling work related to the movement of garments and hence was work ordinarily handled by members of Local 102, the question was asked of John Garrantano why so many men were needed in Local 560. His reply was a follows: Well, I don't need that many men in 560. It was at the time that I had to have them because they would not let me pick up in certain plants. Then we would have to send a 560 man there. If he wasn't a 560 man or if he didn't have a button on his hat, they wouldn't even let him in to pick up. Because that plant, in other words, was strictly 560. That's how we happened to get the 560 men in, in order not to lose the business. Like the United Piece Dye Works, the drivers in the plant were all 560 men and they might have had 12, 15 trucks working out of there. And they figured we were taking the business from them. We were authorized by the jobber, would you pick up the goods, because you are bringing it here,. we want to cut it. That's how we started with the 560. I had to give them a couple of men. As it went along, the more pieces we got a hold of, we had to give them more men. Mr. Reinhart is the man who said I had to give them a couple of men or they couldn't go in the mill. * * * * * [Mr. Reinhart a 560 man] is the man who came to me and told me I had to have 560 men in my truck. I explained to him, it goes to the dress factory, I have to bring it back cut. He said, "I'm sorry, you can't go into that building unless you have a 560 man." I said, "all right." I wasn't going to lose the business. I was satisfied with 102. Everybody was woiking anyhow. I've always paid my men over the 102 scale. All 560-I always paid the men right. There is not one man getting under the State law, whatever it is. I always paid them more than is coming to them .3 The Contract With Local 102 4 Hayes, being a member of the Garment Truckmen Association of New Jersey, Inc., is a party to a collective-bargaining agreement with Local 102. The pertinent clauses relating to the unit and to union security are set out as follows: Third: The parties acknowledge, consent and agree that, in conformity with the past recognized practice and custom in the industry, the unit appropriate for collective bargaining and for all other purposes under existing law is and shall continue to be: All chauffeurs, drivers and helpers employed by all mem- bers of the following associations: Cloak and Suit Trucking Association, Inc.; Garment Truckmen Association of New Jersey, Inc.; Associated Dress Carriers of Brooklyn & Queens, Inc ; New York and New England Dress Carriers' As- sociation, Inc.; Master Truckmen of America, Inc. and all other employers engaged in trucking ladies' garments in contractual relations with Local 102, except that with respect to the Master Truckmen of America, Inc. the unit shall include only those chauffeurs, drivers and helpers who are engaged in trans- porting, delivering, carting or receiving for transportation or delivery in the ladies' garment industry, garments, finished or unfinished, and/or goods, cut or uncut, and/or trimmings and/or accessories used in the manufacture of ladies', infants' and children's garments and/or bundles and who are en- gaged in transporting and delivering and receiving for transportation and de- livery garments or packages containing finished garments from jobbers and manufacturers in the ladies' garment industry to their customers or to pack- ing companies, railroads or fast freight for shipment to customers. [Emphasis supplied. ] The Association concedes that Local 102 represents all covered workers employed by members of the Association, as well as all covered workers em- ployed in the aforementioned unit, and agrees that during the entire term of this agreement Local 102 shall be the sole and exclusive bargaining agent for all such workers * * * * * * * Fifth: Upon compliance with the requirements of Section ^8(a)(3)(i) of the Labor Management Relations Act of 1947, as amended, or upon a change in "The above-quoted material is credited as an admission by John Garrantano and is uncontradicted by other witnesses 4 General Counsel's Exhibit No 3. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the law eliminating such requirements, good standing membership in Local 102 shall be a condition of employment for all covered workers employed by the members of the Association on and after the 30th day following the beginning of such employment, or the execution or the effective date of this agreement, whichever is the later. The clause relating to slack work is: Sixteenth: When a member of the Association is unable to supply his workers with work full time, the available work shall be divided as equally as possible by the week... . Hayes is also a party to a collective-bargaining agreement 5 with Local 560, the pertinent clauses of it being as follows: ARTICLE I SECTION 1 The execution of this Agreement on the part of the Employer shall cover all truckdrivers, helpers, ... as may be presently or hereafter represented by the Union, engaged in the Express and General Trucking Industry . . . within the jurisdiction of the local Union's signatory to this agreement. SEC. 2 Employees covered by this Agreement shall be construed to mean, but not limited to, any Driver, Chauffeur, or Driver-helper operating a truck, tractor, motorcycle, passenger or horse-drawn vehicle. . . The term "employee" also includes but is not limited to, all employees used in dock-work , switching, check- ing, dragline, stacking, loading, unloading, handling, shipping, receiving and assembling. ARTICLE II-Union Security SECTION 1 The Employer recognizes and acknowledges that the Metropolitan New York- New Jersey Area Freight Council and the Local Union are the exclusive repre- sentatives of all employees covered by this Agreement for the purposes of collective bargaining as provided by the Natioanl Labor Relations Act. SEC. 2 (a) Union membership required. All present employees who are members of the Local Union on the effective date of this Agreement shall remain members of the Local Union in good standing as a condition of employment. All present employees who are not members of the Local Union and all employees hired hereafter shall become and remain members in good standing of the Local Union as a condition of employment on and after the 31st day following the beginning of their em- ployment or on and after the 31st day following the effective date of this Agreement, whichever is the later. [Emphasis supplied.] Work duties of the employees The General Counsel produced some 10 employees who testified , among other things, as to their work duties . Based upon this testimony and admissions made by John Garrantano, one of which is set out below, all of the employees of Hayes worked out of a common location with each employee doing substantially the same thing as each other. As an example of the testimony, employee Joseph Lascari testified that any division of work, depending upon whether an employee was a member of Local 560 or of Local 102 was a fiction. He was a member of Local 102 and his testimony on this point is as follows: Q. Let me ask you this. The 560 men were considered as one group, is that right? A. . . Not in our garage, not where we work. We all work altogether. But the idea is, there is a fiction 6 between the two unions if you want to know. I have to do 560 work. Why should I get paid for 102? John Garrantano even said the transporting of garments on hangers and goods in open hampers could be done by members of both Unions. s Metropolitan New York-New Jersey Area Freight Council of the Eastern Conference of Teamsters. Express and General Trucking Agreement September 1, 1958, to August 31, 1960, General Counsel's Exhibit No. 4. 6 The record at page 111, line 18, was corrected on page 600 to read as quoted. HAYES EXPRESS 417 John Garrantano, in explaining the salaries of his employees, explained that helper Fred Cannon was getting his old wages of $78.90 a week which he had originally received while a member of Local 560. He made the following admis- sions: A. And ever since he dropped his union card, I never reduced his wages. I left it that way. Q. And you haven't raised him either? A. No. Q. He was doing 560 work, wasn't he? A. He was doing everything. Q. Everybody does nearly everything, don't they? A. That's right, there is no exceptions there. C. The pay of the employees The actual weekly pay of each of the employees is set forth in detail in Appendix B attached hereto. In a few instances there was conflict as to the exact pay, as will be noted in studying the appendix, but it is unnecessary to specifically resolve this conflict at this time. In short, the weekly pay of employees being members of Local 560 was $89.72 for a helper, $97.80 for a driver, and $107 for a trailer driver. The weekly pay, on the other hand, of employees of Local 102 ranged from the helpers' pay of $75 to the drivers' pay of $82, $82.50, or $83.50. The weekly pay of nonunion employees ranged from the helpers' pay of $78.90 through the pay of the driver helper of $80 to the drivers' pay of $90 and to the trailer drivers' pay of either $85 or $90 depending upon the credibility determination of the witnesses. Of the alleged discriminatees, Alphonso Guarino was paid $80 a week and Thomas Monteleone was paid $85 a week. Both of these employees were drivers and neither were members of a union. Thus the pay for members of Local 560 exceeded that for members of 102 and for nonunion employees. Also some nonunion employees were paid more than 102 members. Sam Garrantano testified as follows on cross-examination by the General Counsel (Sam and John Garrantano run the business) : Q. Were you willing to have Guarino join 560 at that time? [The time of reinstatement.] A. Certainly. I didn't care what he joined or where he joined. Q. Would you have paid him $97.80 a week if he got a book at that time? A. Certainly. Q. Mr. Garantano, do all the men who obtain membership in Local 560 receive raises in pay because of such membership? A. The men receive a raise in pay because they have their membership. Because they have it. It isn't a question of obtaining it. It was stipulated that after Charles Guarino, a nonunion helper, became a member of Local 560 on August 17, 1959, his pay increased from $80 to $89 a week, the pay of a helper in Local 560. D. The case of Alfonso Guarino There are two parts to this case. Whether the layoff on July 29, 1959, was due to his attempts to join Local 560, and whether he was discriminatorily denied work by virtue of a shapeup, i.e., wait outside daily to see if work was available, on and after October 5, 1959, because of his attempts to join Local 560 as well as because he had filed charges before the Board. He commenced work on October 6, 1958. Shortly thereafter and over a period of time he told John Garrantano he would like to join Local 560. He had asked Michael DeSanto, Local 560's shop steward, several times for a book and had been told "the only way you are going to get a book, you got to get an OK from Mr, [John Garrantano]." John Garrantano told him at different times that he had tried to get him a book (membership in Local 560) but could not do so, that "the books are closed," and that "the contract is not settled yet." Guarino even went to the union office early in the morning of July 23, 1959, to apply for membership but was told by Paul Ciampi, the business agent for 560, "You will have to see Mr. John Garrantano. You will have to get his okay in order to give you a book." On July 29, Guarino again went to the union office before work but Ciampi still refused him a book even though Guarino put his money on the table. When he 630849-62-vol 134-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter reported for work that day, John Garrantano told him, "Of all the drivers I have working for me, you are the only person that went up to the Union and demanded a book." . what do you want to join 560 Local for? They want $137. I can get you a book for $60 from 102. Eventually I'm going to have all 102 men here. I don't want no 560 men." He further told Guarino, "Well, there is no work for you today." Guarino left and thereafter filed the charge in Case No. 22-CA-467. After an investigation, the parties settled the case informally on October 2, 1959, with Hayes agreeing to pay a certain sum as backpay and agreeing to reinstate Guarino. The settlement thereafter was set aside and the complaint in the instant case was drafted to include the matter to have been settled therein. Guarino applied for work on the first working day after the settlement which was Monday, October 5, 1959. John Garrantano and his son, Sam, were at the door. John Garrantano told Guarino, "We're going to start a new system at Hayes Trucking Company. We are going to shape up." All the men went to work when they reported that morning except Guarino, Thomas Monteleone, Joseph Scudillo, Joseph Toronto, and James Pecoraro. Later on, Toronto, Scudillo, and Monteleone received work that day. Guarino reported to work the next week on Tuesday the 13th.7 On October 13, 1959, Paul Ciami, the business agent of Local 560, came to Hayes and held a meeting of members of Local 560. Guarino and Monteleone, although non- members, were called into the meeting. Ciampi demanded that Local 560 men should be paid time and a half for overtime work and that Hayes should put a time- clock on the premises in order to keep track of overtime. When he stopped talking, John Garrantano went into a rage and looking directly at Guanno said, "It's all your fault . . . even if I hire 20 lawyers I'll fight you to the end. You are not going to tell me how to run my business. I would rather close up and close the doors. You are not going to tell me to put a clock in this place. You are the trouble man. You and Monteleone. Even if I have to take a baseball bat and bang your heads together." Later on he added, "If I am forced to give you work, you are going to get, you and Monteleone, one day a week, the most." A complete breakdown of the hours worked and the pay received from the weeks ending October 2 to December 31, 1959, for six employees, including Guarino and Monteleone, appears on the attached Appendix C. These figures were taken from the Company's books and were stipulated to as being accurate by the parties. It reflects that Guarino received 1 day's work in each of the 3 weeks ending October 9 through 23, 2 days' work the following week, I day's work the next, 2 days' work for each of the 2 following weeks, 1 day's work for each of the next 3 weeks, and no work thereafter. Guarino also credibly testified that he offered to work as a helper but got no work. Only Monteleone fared as poorly and even he did slightly better than Guarino. Although John Garrantano categorically denied the above conversations he did admit that Ciampi had told him that Guarino had been at his office looking for a book. Until July 1959 Guarino never lost a day's work because of lack of work. However he did testify that at one period of time he painted the house of John Gar- rantano after having been told that there was not much business at the plant. Guarino maintained that there was plenty of business at the Company. I credit Guarino's testimony on material facts. He is undoubtedly a hot-headed individual but he impressed me with having the desire to tell the truth and his statements of fact parallel closely those of other credited witnesses . More about them appears later. The Respondent's witnesses testified that business was very bad, in fact, they testified that over a period of years it had been very bad; that he was laid off for lack of work on July 29, 1959, that a fight engaged in between Guarino and Mon- teleone some 2 weeks before the discharge caused friction among the employees; that Guarino had lost goods; and that he had had several accidents prior to his discharge. The only reason given Guarino, however, on July 29, 1959, was lack of work. The ingredients of the fight were a hot day on which Guarino appeared at work in Bermuda shorts. This was the first time any employee had worn this article of clothing at this plant. After several remarks by the other drivers, Guarino called Monteleone a name and the latter knocked him down with a punch to the nose. The fight was then stopped by other employees Guarino brought civil action against Monteleone which, through the good offices of John Garrantano, were amicably settled. 7 Although IIayes worked on October 12 and Monteleone was told there may be work on that day, Guarino had been told that October 12 was a holiday and there would be no work. HAYES EXPRESS 419 John Garrantano admitted in an affidavit,8 and as a witness, that although he knew Guarino was not experienced in backing in and out as a truckdriver that he neverthe- less would let him work and learn the job. That Guarino had had several accidents and on July 22, 1959, he had received a cable from the insurance people suggesting disciplinary action against Guarino for hitting nonmoving objects. Also that about a month before his discharge Guarino had ripped the canvas on the truck that he drove which cost the Company $138. Additionally, Guarino was continually leaving without getting a full shipment that he had signed for, and a few days before July 29 he had pulled out of Waldrich Company and had dropped off a piece of goods which the guard there found and called to Hayes' attention. John Garrantano admitted, "I don't like to lay off a man. We haven't laid off a man in a year. I'd have kept Guarino on even with his accidents if he'd been able to get along with the men as I figured he'd learn to back up." Further John Garrantano admitted that he was upset over the fact that Guarino had called in on July 28 saying that his foot was hurt and that he could not work and instead of working he had gone to the union office. With respect to slack business and the October shapeup, Respondent's witness, Neuman, business agent for Local 102, testified in effect that Hayes could not really afford to handle a load of as few as 700 dresses, which was the extent of Mr. Mc- Cormick's loads at that time.9 Samuel Arlow, a certified public accountant repre- senting Hayes, testified that Hayes was out of line with the averages in the entire in- dustry based upon a survey that he had made among the 36 carriers. These were members of the Garment Truckmen's Association of New Jersey. For example, whereas the per truck average income in the industry was $13,100, Hayes averaged $6,900, and whereas the average wages in the industry was $4,417, Hayes was paying $4,663. He testified that he had told John Garrantano that he had too many pieces of equipment and too many employees for the amount of business carried. Mr. Arlow testified, in addition, that the 1957 income of Hayes was slightly higher than the expense; that the 1958 income was slightly lower than the expense; and that the 1959 income was approximately the same as that for 1958. He had recommended that Hayes try to operate more efficiently. Although he testified that the percentage of Hayes' business was from 35 to 40 percent in the garment industry, it is clear that he meant finished garments and was not including cut garments in cartons. After the summer months of 1959 he recommended that Hayes use the shapeup, employ only when needed, and stop hiring unnecessary help. He suggested a seniority list with those lowest in seniority to shapeup and testified that such a list was prepared by Hayes' office. Samuel Garrantano, the 37-year-old son of John Garrantano, herein referred to as Sam, testified that he had been in the business all his life and that he and his dad participated in everything. He is the secretary of the present corporation but was a partner previous thereto. Sam admitted giving a union card to an employee but according to him the card had been left in his office for an individual who was absent and that when he gave the card to the employee he told him that he did not care whether or not it was signed. Although he could relate exactly what he told the individual, he could not identify the person. He denied the testimony of Leo Can- non (which will be developed later); he testified to a meeting with Ciampi with respect to the reinstatement of Guarino wherein Ciampi said that Local 560 did not want Guarino in it as they had lots of men out of work and the books were not easily gotten. He testified that Hayes' Exhibit No. 1 was an accurate seniority list of the Company but could not remember when it was made up although he did testify later on in the hearing that the list ". . . may have been [made prior to the settlement in October 2, 1959]." The testimony of Sam Garrantano with respect to the seniority list is as follows: Q. Can you tell us approximately when this exhibit was prepared? A. I don't remember the date. I remember my dad asking me to make one and I set down with the books. 9 John Garrantano testified that it was his signature on those affidavits but that much of the matter therein was not what he had told the Board employee who wrote it down before John Garrantano signed it He testified that he could not read and that the state- ments at the end of the affidavits saying, "I have read the foregoing and it is true" were false. As he did read some matter into the record I find he not only can read but he lied in denying the affidavits. I do not credit John Garrantano unless uncontradicted He is a felon, having been convicted of a crime in which he was sentenced to 3 years in the State penitentiary and his testimony was most unconvincing to me. 9 The record does not disclose that McCormick ever carried more than 700 dresses per load 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And the copy which you have furnished is an identical copy of the list which you made at that time? [Emphasis supplied.] A. Yes, it is the copy. Q. Taken from your files? A. Yes. Then later, on cross-examination, Sam testified as follows with respect to the same list: Q. Who prepared this list? A. Someone in my office. Q. Do you know who? A. Well, either one of the two girls. I am not sure which one. Q. When was this prepared? A. This list was prepared, ,l think I am not sure, prior to the shape. This is an example of why I do not credit the testimony of Sam Garrantano unless it is wholly uncontradicted, or unless it can be treated as an admission against in- terest. In addition to the above reversal in testimony he was inconsistent and evasive. He gave me the impression of being more interested in attempting to outsmart the questioner than in attempting to divulge any truthful answers to questions . Although the ostensible purpose of the seniority list was to use those with less seniority in the shapeup, he did not follow that system in the shapeup as he used Joseph Scudillo, who was number nine in seniority , having first been employed in 1952. Also it is interesting to note that the contract with Local 102 provided a method to share work, yet rather than follow the contract , the so-called "seniority list" was prepared for use . Article 16 in the contract with Local 102 calls for work being split up and divided equally as possible in case of lack of work. Sam admitted, how- ever, that he did not split up the work and that the shapeup was used for nonunion men. He testified as follows with respect to this, "I didn't make these 102 men split [work] because I had work for them , these 102 men." "My 102 men never lost time." "Also, they [560 men] never lost time." With respect to vacations, the parties stipulated that Al Guarino received no vaca- tion pay for the year 1959 and that Monteleone received 5 days' vacation pay. How- ever the vacation provisions in the contracts are that Local 102 men receive 2 weeks' vacation or 10 working days after 1 year of employment and that 560 men get 15 days' vacation if they have worked 235 days within the yearly qualifying period. No additional evidence on this point was adduced. Respondent had a witness to testify to the ease in joining Local 560. This was witness Vincent Toronto who testified that although he was a previous bookholder in Local 560 he secured a new book by talking to Ciampi without help from John Garrantano . At the time he got the new book on August 17, 1959, he received a raise although he continued doing the same job. At the present time he is making $100 a week driving a trailer truck and, although he is entitled to $107, he said he is satisfied with his present job and is not going to ask for the difference in pay. He testified that he had not discussed his testimony with Respondent's attorney or with either John Garrantano or Sam Garrantano or with his brother, Joseph Toronto, prior to the case. He testified that in the past he would leave Hayes and strike out on business for himself but when broke would always return to Hayes. I find him to be a prejudiced witness on behalf of Respondent. Based upon his demeanor and' a review of his testimony, I do not credit him for any material matter unless he is uncontradicted . But I do credit his statement that when he joined Local 560 he received more money for doing the same work that he had been doing prior thereto. F. The case of Tom Monteleone Monteleone came to work at Hayes as a truckdriver in the spring of 1958. He trucked general commodities, the same type of materials carried by members of Local 560. His weekly wage was $85 . After 4 or 5 months with Hayes he told John Garrantano that he would like to join Local 560 for the reason , basically, of hospitalization . John Garrantano told him , "Don't worry about it you'll do all right." Nothing at this conversation was said about Local 102. Some 4 or S months later, Monteleone again asked to join Local 560. The third time he asked was in August 1959, and John Garrantano at that time told him he would talk to Ciampi when the latter returned from vacation. Just before Labor Day in 1959, John Garrantano told Monteleone that a delegate from 560 and the delegate from 102 and a man from the Labor Board were going to be there on a Tuesday or a Wednesday and those that did not have books would not go to work . Monteleone told him that he wanted to join and John Garrantano said, "Then you better get in the Union right away. Join the 102 and this way you will be kept working." Monte- HAYES EXPRESS 421 leone told him that he wanted to go into 560 but in reply John Garrantano told him, "You join 102. This is going to be 102 here. I am going to have nothing but 102 in this place." Monteleone testified that he explained to John Garrantano that he could not understand the expense of buying a union book and paying dues in order to get a cut in pay from $85 a week to $82 a week. After John Garrantano told Monteleone that he could not get a book in 560, Monteleone said to him, "Suppose I try? Supposing I go and see if I can get a book?" He replied, "It wouldn't do you any good. You can't get a book." According to Monteleone's testimony: Q. What, if anything did Mr. Hayes [John Garrantano] say would happen if you did get a book? A. "Anybody that gets a 560 book without my say so doesn't work here." On Thursday, October 1, 1959, Monteleone arrived back at the office from his regular route after 6 o'clock. He pulled his truck onto the sidewalk without backing it in and walked to the office. His foreman asked him to back in his truck but he told him he did not want to back it in as he got paid only to 6 o'clock. However, he did back in the truck after John Garrantano ordered him to do so. John Gar- rantano told him to quit if he did not like it and Monteleone told him to fire him. Further, according to the credited testimony of Monteleone, John Garrantano- took his arm and said, "Listen, you . you, I know you are trying to get the guys to go around the corner, to talk to them, to take them to the Labor Board." Monte- leone then went into the office with John Garrantano and said, "John, if you are a man, you'll bring the man to me who told you I talked to anybody to go to the Labor Board." Monteleone said , "He [John] came around the counter , dug his nails behind my neck, grabbed me by the seat of the pants, and rushed me to the door . . and said, 'I am going to cancel my vacation in Florida . I'll get a baseball bat and I71 break every . . . bone in your body. I'll straighten all you guys out around here.' So I went home." The next morning he came to work and performed as usual with -nothing happening out of the ordinary. The following Monday morning, October 5, 1959, Monteleone came to work to find the shapeup. Monteleone credibly testi- fied that John Garrantano said to Sam , "'I am going to make a new deal today,' and let everybody go in, except me, Al Guarino, Joey Toronto, Joe Scudillo out on the sidewalk, and he hired . . . a new fellow that morning [James Pecoraro]." Later on that morning Monteleone did get work . He had been outside about 5 minutes or so when John Garrantano came out and said "Go ahead , Tom, you go in." Ap- pendix C discloses that Monteleone received a full week's work on the week ending October 2, 2 days' work for each of the following 3 weeks, and 1 day's work for the week ending October 30. Following this he did not report for work. Monteleone corroborated the testimony of Guarino with respect to the October 13 meeting held by Ciampi and the statement by John Garrantano at that meeting with respect to both Guarino and Monteleone. And he corroborated Guarino in a statement that John Garrantano said that both Guarino and Monteleone would receive only 1 day of work a week thereafter. Monteleone further testified that John Garrantano put his arm around him and told Ciampi, "If [Monteleone] would keep his mouth shut and do what I tell him, he can do all right." Monteleone admitted the fight with Guarino and admitted the aid he received from John Garrantano is settling the charges filed by Guarino. He also testified that John Garrantano was not in the habit of using profanity but did so when he had the argument with Monteleone. I credit Monteleone with respect to the above testimony. He was a forthright witness and appeared to be willing to tell of the facts regardless of whether they were favorable or unfavorable to his case. Undoubtedly he was hotheaded as was Guarino and the Garrantanos. His story is consistent with that of Guarino and with the events as related by other witnesses for the General Counsel. As the discrimination case of Monteleone depends upon why Hayes had the shape- up, Hayes' defense is the same as for the case of Guarino. The defense of Hayes and Local 102 to the contract charges will be dealt with later. G. Corroborating evidence and independent evidence of 8(a)(2) violation Testimony of Leo Cannon: 10 Leo Cannon was a nonunion driver hired originally in 1954. He was making $90 a week. He never had to shape up but testified that 10 Leo Cannon, and other employees, are credited unless specifically discredited by me. All these witnesses with the exception of the Charging Parties and the Respondents were sequestered during the trial of the case at the request of the Respondent . Their stories 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either Sam or John Garrantano told him that Monteleone and Guarino were the reason they were having all this "trouble," referring to the shapeup. Cannon attempted to get into Local 560 several times by first asking John Garrantano and then asking the shop steward who told him "it was OK if the boss said it was OK." He testified that he was doing the same work as members of Local 560 but was get- ting less money. Accordingly he wanted to join 560. At one time, the shop steward for 560 complained to Sam Garrantano that he was being pestered by Cannon about joining Local 560, whereupon Sam told Cannon to leave the steward alone, "that he doesn't have nothing to do with it." This latter conversation happened in March 1959. In September 1959 Cannon again asked about joining Local 560 in front of both John and Sam Garrantano and they started arguing with him. Sam told him he had better keep his mouth shut, otherwise he would be looking for a job. John Garrantano then called him into the office and told him he could get him a Local 102 book if he wanted to join Local 102. Testimony of John Smiraldi: Smiraldi, a member of Local 560, was a driver having been first hired in 1947. He made $97.80 a week. He testified that he trucked all kinds of freight and even delivered in the garment center. He saw the men shaping up but he himself was never asked to do so. He said that Leo Cannon trucked the same kind of articles that he did. And that Al Guarino did the same thing. The testimony of Joseph Lascari: Lascari was a driver-member of Local 102, having first been hired in 1953. His salary was $82.50 a week. He carried the same type of cargo that members of Local 560 carried. Either John or Sam Garrantano told him that he had to join Local 102. Local 102 was the only union "open." He did not understand why it was that he had to do Local 560 work for Local 102 pay. He was not permitted to attend the meeting held on October 13 for members of Local 560. He had never seen a meeting held by Local 102 and the first time that he ever saw the business agent for Local 102 was at the date of the hearing The testimony of Joseph Toronto: Toronto was a nonunion driver helper originally hired in 1956. He made $80 a week. He was in the shapeup but had not worked for the Respondent since October 10, 1959. His reason for leaving was "lack of work." He trucked all kinds of commodities. John Garrantano asked him to join Local 102 but he replied that he did not want to join Local 102, as he would rather be a member of Local 560. John Garrantano told him that little by little he was going to get rid of freight and just have garment trucks and Local 102. He had never heard of a shapeup until the Monday morning on which it was started. He testi- fied that John Garrantano told him if he wanted to join Local 560 he could do it on his own but in time to come he would have to shapeup. About a week after this conversation, the shapeup started. The testimony of Fred Cannon: Fred Cannon was a nonunion helper originally employed in 1953. He made $78.90 a week. He was formerly a member of Local 560. In March 1960, the business agent of Local 102 told him he had to join 102 or otherwise he would be unemployed and he would pull the men out of the garage. Afterward Sam Garrantano told him that he was required by law to give Fred Cannon a card and that he was supposed to join Local 102. He works more on trucks driven by members of Local 560 than on trucks driven by members of Local 102. He attended the meeting on October 13 held for members of Local 560. Testimony of John McCormick: John McCormick is a driver-member of Local 102 originally employed in 1954. He made $83.50 a week. He joined 102 after John Garrantano had told him some 6 months after he had started his employment that although they carried dress goods none of the drivers were in Local 102, and the Union was after him to get men to join. Thereupon he agreed that as long as he had to he would join Local 102. In all the time he had worked there, he had only seen the business agent of 102 once or twice at the plant. There was no shop steward for Local 102. He testified that the shapeups stopped when Monteleone and Guarino quit coming around He testified that the Respondent needed help after Monteleone and Guarino had left. He started hauling general commodities along with his dresses a year or two ago. Only two of the trucks were equipped with racks for dresses. His was one of the trucks. He never saw a Local 102 contract and nobody had even told him that they had read it. Testimony of Frank Paladino• Paladmo was a driver-member of Local 102 orig- inally hired in 1957. He made $82 a week. Although he was handling the work normally done by both members of 102 and 560, he was called into the office in the month of August 1959 and handed two cards to sign and he signed them, thereby joining Local 102. He testified that had be had his choice he would have joined are consistent, their demeanor was good, and they appeared to be forthright witnesses who should be credited on the material facts HAYES EXPRESS 423 Local 560 inasmuch as he would get more money and more benefits. He also testified there was no falling off of the work in July 1959. John Garrantano was the one that gave him the cards to be signed. He asked about the initiation fee and was told "don't worry about the initiation. I'll pay it and you pay me so much every week." He further testified credibly that he went to John Garrantano and asked him if he could get into Local 560. John Garrantano kept telling him, "Well, look, in a couple of weeks, in 2 or 3 weeks, in a month or so, like that." There was no Local 102 member present when John Garrantano gave him the two cards to sign. The business agent for Local 102 asked him to be the representative at the garage and was going to give him a copy of the contract but as of 2 or 3 weeks prior to the hearing he had not received confirmation of this. Al Guarino had told him that the union agent at Local 560 had told Guarino that he had to get clearance through the boss." The testimony of Robert Guerriero: Guerriero was a driver and a member of Local 560, having first been employed in 1956. His salary was $97.80 a week. He joined Local 560 about a year after he was employed and believed that John Garrantano gave him the membership application. He trucks everything that he is told to carry. He credibly testified that members of both Local 560 and Local 102 carried the same freight at one time or another. He corroborates the testimony of both Guarino and Monteleone with respect to the visit by Paul Ciampi at the plant on October 13, and the fact that he talked about the timeclock and overtime. As stated earlier, John Garrantano specifically denied much of the foregoing testi- mony. However, he is not credited as against the above witnesses. Business Agent Neuman of Local 102 admitted telling nonunion employee Fred Cannon, in March 1960, ". . . you must loin our union." H. The contentions of Respondent Local 102 The Respondent Local 102 moved to dismiss the complaint at the close of the General Counsel's case and in its brief reiterates this motion. It admits in its answer that it entered into the collective-bargaining agreement with the Association and enforced it with regard to Hayes but denied that it had ever been maintained and enforced with regard to all of Hayes' employees and it denies that any agree- ment, practice, or understanding whatsoever ever existed among Hayes, 102, and 560 with regard to maintaining the two collective agreements It denies that the 102 agreement was maintained in the unit inappropriate for collective bargaining. It denies also that any dues or any moneys were improperly checked off and paid over to Local 102 or that any unfair labor practices were committed by 102. It argues that from the inception of the first contract the employer Hayes had with Local 560, it was the clear intent of the Garrantanos to limit membership in Local 560 to a unit composed of drivers and helpers carrying nongarment cargo and to include garment drivers and helpers in the unit covered by the 102 contract. That the employees were aware of this division and that evidence such as reasonably permanent assign- ment of routes and special skills in the performance of hauling dresses tended to support the intent of the parties. Also that two separate I.C.C. certificates had to be obtained-one for the shipment of garments and the other for the shipment of general freight as different tariff schedules applied. There was no evidence of any agreement, practice, or understanding with regard to maintaining the two contracts, and no testimony to show an agreement or practice by and between Local 102 and Local 560 or any conclusive agreement among the three parties and it is clear from the testimony that no pressure was brought by Local 102 against Hayes' employees to join it nor did it in any way threaten them with loss of employment if they did not join. The motion to dismiss is denied. The three main points in the argument in the brief of Respondent Local 102 is (1) that the Board is without power to declare the contract between 102 and Hayes a nullity since the Association, a party to the agreement, is not a party to the pro- ceeding. (2) That in any event the General Counsel cannot prevail in this proceed- ing since the units described in the Local 102 and the Local 560 contracts are mutu- ally exclusive and the unit describe in the Local 102 contract is appropriate as to Hayes. And as to (3) there is no proof that Local 102 was not a representative of Hayes' employees entitled to consummate a union-security agreement. li It might appear from a cursory reading of the record that Paladino gave contra- dictory testimony with respect to whether or not lie ever asked John Carrantano if lie could see to it that he could get into Local 560 However, I find that the witness was referring to several occasions when he talked with the boss. On one, at least, lie did not ask him about Local 560 because at that time he did not want to press him, being grateful to get into any union for the purposes of hospitalization. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is noted that although the Association did not make a formal appearance, the following officers and directors of it offered testimony at the hearing. John Gar- rantano was a member of its board of governors. Barney Shapiro, its president, did not testify in person but his testimony was stipulated to and Henry Greenberg was its secretary. I. Concluding findings It is clear from the credited testimony of the employees and from admissions of the Garrantanos that there were no distinctions in duties between drivers regardless of union membership. Likewise, there were no distinctions between trailer drivers or between helpers based on union membership. It is also clear from a reading of the contracts that each one had an exclusive recognition clause for the same group of employees. Thus the Local 102 contract stated ' he bargaining unit to be all drivers and helpers employed by the Association members making an exception only with respect to members of another association. In this latter exception the contract carefully limits the unit to employees who handled or transported ladies' garments and related goods. Had this been the desire of the parties with respect to employees of members of the Association in issue, it obviously could have been spelled out likewise. Accordingly the parties to the Local 102 contract are bound by the unambiguous terms as written. Both contracts, being exclusive, cannot cover the same unit. Accordingly, the units are inappropriate as they could not exist together. As each contract had a union- security clause and as the unit is inappropriate, the union security clause of each is invalid not having satisfied the condition precedent in the proviso to Section 8(a)(3) of the Act which says, inter alia, the unit must be an appropriate unit. The law is well settled that the execution, maintenance, and/or enforcement of an illegal union-security clause violates Section 8(a)(1), (2), and (3) and 8(b) (1) (A) and (2) of the Act. Obviously, as these clauses were in existence they were being maintained. It is unnecessary to decide whether the contracts were illegal when executed or whether their enforcement was illegal. However, I find credible evidence that establishes the fact that either the Local 102 contract was being enforced or Hayes was independently illegally assisting Local 102. Thus for example, Leo Cannon was told by John Garrantano that he could get him a Local 102 book. Joseph Toronto was asked by John Garrantano to join Local 102 and told that only Local 102 would remain in the operations of Hayes. Fred Cannon was told by the business agent of Local 102, Neuman, that he had to join 102 or be unemployed; Neuman admitted telling Fred Cannon, ". . . you 'must join our union," and Sam Garrantano gave him a Local 102 card and told him he was supposed to join it. And finally, Frank Paladino was called into Hayes' office where John Garrantano handed him two cards to sign which he did thereby becoming a member of Local 102. These instances interfere with the rights of an employee to freely join or not join a union of his own choice and accordingly also violate Section 8 (a) (1) of the Act. As to the individual cases of Guarino and Monteleone, the evidence clearly estab- lishes that Guarino was laid off or discharged on July 29 because of his attempts to join Local 560. This violated Section 8(a)(3) of the Act. The defenses put up by Hayes are clearly pretexts . It is noteworthy that it was immediately 'after pro- testing to Guarino that he was the only person that went up to Local 560 and demanded a book, that John Garrantano told him there was no work for him. The reason given by Hayes for the layoff on July 29 was that business was bad. But it had been bad for so many years there is no reason for Hayes' precipitous action except Guarino's activities in trying to get a Local 560 book. John Garrantano even admitted he would have kept Guarino on if it were not for the friction caused by the fight. It is obvious then that the reason for the layoff was not lack of work. Other reasons for the layoff, not told Guarino at the time, were, respec- tively, a fight which occurred a week or more earlier causing friction among the employees, he had several accidents, and he lost some goods. With respect to the last two reasons, Guarino had never been warned, in fact nothing was done to him at the time of the occurrences. As to the fight and the friction among employees, the fight was old, it had been broken up without any warnings, and in fact the law- suit involving it had been settled by John Garrantano with no apparent ill will. As these drivers worked generally on their own, there can be no merit to the defense that Guarino was laid off because of friction between himself and others. Further, the fact that the fight was not discussed with Guarino when he was laid off is proof it had nothing to do with the layoff, and Monteleone, the only one who actually did all the fighting, was not laid off. Guarino filed a charge relating to the layoff which charge was settled informally by Hayes agreeing to take Guarino back to work and to pay him a specified sum of HAYES EXPRESS 425 money as backpay. When Guarino attempted to come back to work he was met with the shapeup. Now with respect to the alleged discrimination of the shapeup , Guarino and Monteleone can be treated together. It seems clear from the credited evidence that Monteleone's efforts to join Local 560 and his refusal to join Local 102, although urged to do so by John Garrantano, incurred the displeasure of the Gariantanos and culminated in his being placed on the shapeup with Guarino . I find the shapeup started on October 5, 1959, because Guarino was coming back to work at that time in accordance with the settlement agreement. By this time, Monteleone's activities had come to a head and he too was put in the shapeup . Sam Garrantano voiced the reason why others were in the shapeup . It is simply that they were not members of either union. The fact that the Cannon brothers were nonunion employees and were not on 'the shapeup does not disprove this hypothesis. Joe Scudillo , who outranked even the Cannons in seniority , had to shape up but it is clear that he received much more work than either Guarino or Monteleone . Finally the shapeup ended when Guarino quit coming in daily for his 1 day's work per week. Joseph Toronto was warned a week earlier that he would have to shape up when he told John Garrantano he wanted to joint Local 560 and not Local 102. He quickly tired of the discrimination against him by the shapeup and quit reporting to work. I find this as well as the cases of Guarino and Monteleone to be con- structive discharges and violative of Section 8(a) (3) and (1).12 I find the shapeup of Scudillo to be discriminatory based as it was, according to the admission of Sam Garrantano, because he was a nonunion member and hence violative of Section 8(a) (3) and ( 1). The shapeup, in light of the entire record, was no more than an ill-concealed subterfuge on Hayes' part designed to discriminate against these employees . Although I have found no evidence to substantiate Hayes' claim that the shapeup was for economic reasons, the inclusions therein of employee Pecoraro is not discriminatory . He could only have been rehired the first week of the shapeup because someone was needed in the business and Hayes did not want Guarino or Monteleone to get much work. No evidence has been adduced by the General Counsel that but for the discrimination practiced against Guarino and Monteleone, Pecoraro would have received more work or any work. Rather, it appears that the only reason he got the work he did get was because of the discrimi- nation . It is noteworthy that his work ceased with Guarino's. The Discrimination in Rates of Pay I find from the admissions and other credible evidence set out above , that varia- tions in rates of pay were contingent upon the individual 's union affiliation or lack of affiliation . This violates the Act as it is well settled that disparate wage treatment of employees based solely upon union membership violates Section 8 ( a)(3) and (1) of the Act. (See Radio Officers' Union et a!. (A . H. Bull Steamship Company), 347 U.S. 17,46; Northeast Coastal, Inc., 124 NLRB 441. Accordingly, not only did Hayes violate Section 8 (a)(3) and (1 ) by not paying its nonunion employees the same wages it paid members of Local 560, but it violated Section 8 (a) (3) and ( 1) by not paying members of Local 102 what it paid members of Local 560. All employees in the unit did the same work . As it has been shown that Hayes illegally assisted Local 102 in violation of Section 8(a)(2), Hayes cannot seek refuge in its contract with Local 102. Likewise any variation in vaca- tion benefits between employees based upon union membership would violate Section 8(a)(3) and ( 1) of the Act. However, as this point was not in the complaint and was not litigated I make no findings as to it. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Hayes and Respondent Local 102 set forth in section III, above, occurring in connection with the operations of Respondent Hayes de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. 'Although Joseph Toronto was not specifically named In the complaint, I find the parties litigated the issue . He was threatened he would have to shape up when he told John Garrantano he wanted to join Local 560 and not Local 102 I further find that John Garrantano's attempts to block membership In Local 560 violates Section 8(a) (1) of the Act. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY I will recommend the usual remedy making whole those employees who received less wages because they were nonmembers of Local 560 than members of Local 560 received, by ordering Respondent Hayes to pay them the difference in the wages from March 21, 1959 (6 months prior to filing the second amended charge on Sep- tember 21, 1959, in Case No. 22-CA-467). Additionally, since I have found that Respondent Hayes discriminated against Alfonso A. Guarino in violation of Section 8(a)(3) since July 29, 1959, 1 will recommend that it make him whole for any loss of pay suffered by reason of the discrimination by payment of a sum of money to him equal to that which he would have earned as wages from the date of discrimination to the date of his testimony in which he stated his desire not to be reinstated, less his net earnings during such period including any settlement money, the loss to be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. Since I have found that Respondent Hayes discriminated against Joseph Toronto and Thomas Monteleone in violation of Section 8(a)(3) by placing them on the shapeup. and giving them less work than formerly and by virtue of the fact that it constructively discharged them thereafter, it will be recommended that Respondent Hayes offer said Joseph Toronto and Thomas Monteleone immediate and full re- instatement to their former or substantially equivalent positions, respectively, with- out prejudice to their seniority or other rights or privileges. It further will be recommended that Respondent Hayes make whole said employees for any loss of pay suffered by reason of the discrimination by payment of a sum of money to them equal to that which they would have earned as wages from October 2, 1959, to the date of reinstatement , less their net earnings during such period, the loss of pay to be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, supra. As it has been shown that the contract between Hayes and Local 102 contains an illegal union-security clause inasmuch as the unit therein was inappropriate over- lapping, as it did, with the unit in the Local 560 contract, I shall recommend that Respondents Hayes and Local 102 be ordered to refrain from executing, maintaining, performing, enforcing, or otherwise giving effect to the contract. As active illegal assistance in violation of Section 8(a) (2) was likewise shown, the remedy ordinarily used is to order recognition to cease until certified by the Board following an election. Local 102 contends the Board has no power to declare the contract with Local 102 a nullity since the association, being a party to the agreement, is not a party to the proceeding. The General Counsel, however, argues that the case of N.L.R.B. v. Sterling Furni- ture Company, et al., 202 F. 2d 41 (C.A. 9), relied upon by Local 102, can be distinguished from this case on its facts. I agree with the contention of the General Counsel. In the Sterling case, the association was permitted to intervene upon its motion and yet the remedy was improperly, said the court, drawn only against the individual member of the association. Here the association did not seek to intervene to protect its rights yet the record clearly shows it had knowledge of the proceedings through John Garrantano, a member of its board of governors, and through its president, Barney Shapiro, whose testimony was subject to a stipulation, and through its secre- tary, Henry Greenberg, who testified at the hearing. It is clear that here the associ- ation did not care if Hays broke off from it, and Hayes did this very thing by entering into the exclusive contract with Local 560 covering the identical unit that was in the Local 102 contract. Furthermore, I reject the contention that I cannot require Hayes and Local 102 to cease and desist in their contract where the association is not a party to this pro- ceeding and was not formally notified of the charges herein This contract is in itself a continuing means of thwarting the policy of the Act (National Licorice Company v. N.L R B., 309 U.S. 350). The policy of the act cannot be made effective without an order which will result in cessation of the practices which I have found unlawful and which are embodied in this contract. As I am only concerned with rights which are concomitant to the Act's public policy, I do not here pass upon any private rights arising upon or derived from the contract. Private rights between Local 102 and the association is a matter for appropriate future proceedings with which I am not con- cerned. But, insofar as such private rights may be inconsistent with the public policy of the United States as announced in the Act, that public policy must prevail HAYES EXPRESS 427 (International Brotherhood of Teamsters, etc., Local 179, 1,10 NLRB 287, 288-290; cf. N.L.R.B. v. Express Publishing Co., 312 US. 426, 436-437. Also see United Association of Journeymen & Apprentices of Plumbing and Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumb- mg & Heating Corporation), 115 NLRB 594, 598-599). Additionally, I shall recommend an appropriate remedy to correct the unlawful exaction of dues and assessments (J. J. White, Inc., 111 NLRB 1126, 1129). For example, the business agent of Local 102, Neuman, admitted that he enforced the contract by asking em- ployee Fred Cannon to join Local 102 and Sam Garrantano gave Fred Cannon a Local 102 card and told him he was supposed to join it. Dues collected from em- ployees constitute a price coerced from them for the purpose of supporting and maintaining Local 102 which Respondent Hayes had assisted in violation of the Act Assisted labor organizations thwart bona fide representation. (See Virginia Electric and Power Company v. N.L R.B., 319 U.S. 533, 539; also N.L.R.B. v. Baltimore Transit Company, et al., 140 F. 2d 51, 58 (C.A. 4).) Since there is evidence of active assistance of Local 102, I will recommend the Brown-Olds 13 remedy requested by the General Counsel. As union dues, initiation fees, assessments, and other moneys have been paid Local 102 in accordance with the illegal contract, I will recommend that Local 102 refund to Hayes' employees the initiation fees, dues, assessments, and other moneys paid by them since Sep- tember 11, 1959 (6 months prior to the filing of the charge in Case No. 22-CB-265), and that Hayes refund to its employees similar type moneys paid by them from February 3, 1959 (6 months prior to August 3, 1959, when the charge in Case No. 22-CA-467 was filed) until September 11, 1959. (See Southeastern Plate Glass Company, a Division of Automobile Glass Company, Inc., et al., 129 NLRB 412 particularly footnote 5 therein. Decided October 25, 1960.) I shall further recommend that Respondent Local 102 be ordered to notify all of Hayes' employees from whom it had unlawfully collected such dues and assess- ments that it is making reimbursement pursuant to the recommendation of a Trial Examiner, and that it will not hereafter require union membership as a condition of employment, except in accordance with the provisions of Section 8(a)(3) of the Act. The contract with Local 560 is involved in the above-mentioned settlement agree- ment in this proceeding and accordingly will not be included in the remedy proposed herein. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Hayes is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Local 102 and Respondent Local 560 are labor organizations with- in the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the payment of wages based upon lack of membership in Local 560, Respondent Hayes has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Alfonso A. Guarino, Thomas Monteleone, and Joseph Toronto, the Respondent Hayes has further engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Hayes has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6 By maintaining in effect an agreement which makes union membership a condi- tion of employment and requires payment of dues and assessments as a condition of employment without meeting the requirements of Section 8(a)(3) of the Act, Respondents Hayes and Local 102 have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the Act, respectively. _ 7. By assisting Respondent Local 102, Respondent Hayes has engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices. within the mean- ing of Section 2(6) and (7) of the Act. (Recommendations omitted from publication.] is ibid. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B HAYES' EMPLOYEES Union Employee name Job Original hire Weekly pay Employed at hearing Comments 560 ---- Michael DeSanto_____ DT 1929 $107 00 Yes------- 102 .... Anthony Gallo______ h 1935 75 00 Yes ------ 560 ---- James Nicosia_________ Dd 1940 100 00 Yes------- 660 ---- Vincent Toronto______ Dd 1943 100 00 Yes------- 560 ---- John Snuraldi_________ D 1947 97 80 Yes------- 560 ---- Anthony Catanzaro___ D 1950 97 80 Yes------- 560 ---- Harry Jackson, Sr_____ D 1950 97 80 Yes_______ Harry Jackson, Jr----- D 1951 _ Left few months after October 1959 None- Joseph Scudllo_______ DT 1952 [617] 90 00 Yes_-_____ [428] 85 00 Do__ Fred Cannon.-_-____ h 1953 78 90 Yes______ 102-_. Joseph Laseari___--__ D 1953 82 50 Yes None.. Leo Cannon---____-_ D 1954 90 00 Yes [846]- 560__ Albert Portella - _ _ - _ DT 1954 107 00 No-_ _ _ _ _ _ Left December 1959. 102____ John McCormick-____ D 1954 83 50 Yes____-__ 560____ Robert Guerriero_----_ D 1956 97 80 Yes [848]_ 102___ Frank Cassie__-_-_-___ D 1956 82 00 Yes_-_____ None. Joseph Toronto_______ Dh 1956 80 00 No__---___ Worked to Oct. 10, 1959, m shapeup. 102____ Frank Paladmo_-_____ D 1957 82 00 Yes 560___- Charles Guarmo______ h 1957 89 72 Yes_______ Pay jumped from $80 in week of 8/17/59 when he became member of 560 [735]. 102-___ Albert Falcon-------- h 1957 75 00 Yes [846]_ None- Thomas Monteleone D 1958 85 00 No__-_-___ Do__ Alfonso Guarino______ D 1958 80 00 No-_______ 102____ Anthony LoDico______ D 1959 82.00 Yes [847]__ $75 m October 1959. None James Pecoraro------- D 1940 _____________ ___________ Came back 10/7/59 but left after 12/11/59 in shapeup. 102 ---- Wm. Palladino ________ __________ _____________ ____________ Worked 8/3/59 to 9/22/59 NoTE.-D=driver, T=trailer; d=dispatcher; h=helper. Bracketed matter denotes transcript page APPENDIX C HOURS OF WORK AND PAY OF Six EMPLOYEES BY STIPULATION OF PARTIES Week Joe Scudillo Tony LoDico i Pecoraro Monteleone J. Toronto A. Guarino ending- Hours Pay Hours Pay Hours Pay Hours Pay Hours Pay Hours Pay 10/2/59 ---- ---- 40 $85 40 $75 None None 40 $85 40 $85 None None 10/9/59 -------- 9 16 85 40 75 16 $28 16 34 2 16 80 8 $16 10/16/59 ------- 24 8 51 40 75 24 42 16 34 32 64 8 16 10/23/59 ....... (4) 51 40 75 8 14 16 34 16 32 8 16 10/30/59_______ 40 85 40 75 24 42 8 17 16 32 16 32 11/6/59 -------- 28 68 36 75 36 70 (6) ------- None None 8 16 11/13/59 ------- 24 51 40 75 40 70 _ 32 11/20/59__-____ 40 85 40 75 32 56 _______ _______ _______ _______ 16 32 11/27/59_______ 16 34 32 675 32 675 _______ _______ _______ _______ 8 16 12/4/59____-___ 24 51 40 75 24 45 _______ _______ _______ _______ 8 16 12/11/59-__-___ 40 85 32 60 24 45 _______ _______ _______ _______ 8 16 12/18/59------- 40 80 40 75 ....... ....... ....... ....... ....... ....... ....... ....... 12/25/59------- 32 685 32 675 ------- ------- . ------- --- ---- ------- ------- ------- ------- 12/31/59 ------- 32 685 32 675 . . . . . . . i LoDico was the only one of these employees who did not shapeup. He is put on this list as his seniority is less than the others. 9 Both apparently got 3 days' vacation pay. 6 Did not report. 3 Record incorrectly says $15. 6 Clear overpayment. 4 Worked 20 hours, paid for 24. 7 [Sic ]